Clarke v. Clarke, 2011 ABQB 397

Court of Queen ’ s Bench of Alberta Citation: Clarke v. Clarke, 2011 ABQB 397 Date: 20110624 Docket: 4803 147224 Registry: Edmonton Between: Colleen Elaine Clarke Applicant - and - Barrie Matthew Clarke Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In February, 2009, Mr. Clarke was ordered, on a without prejudice basis, to pay his wife interim monthly spousal support of $1,000.00; he now applies to terminate ongoing support pursuant to that order. [ 2 ] Mr. Clarke ’ s application is denied: he has failed to prove both that Ms. Clarke was not disadvantaged by the marriage, and that the fundamental marital obligation has been adequately satisfied by three years of support payments. [ 3 ] Because the previous order was made “ without prejudice ” , Mr. Clarke does not have to establish a material change of

[ 3 ] Because the previous order was made “ without prejudice ” , Mr. Clarke does not have to establish a material change of circumstance since February 2009. Rather, Mr. Clarke must prove that Ms. Clarke is not entitled to spousal support, either because she has not suffered financially from the marriage or its breakdown or because he has not failed any marital obligation. Ms. Clarke contests the specific allegation that she should now be economically self-sufficient: she asserts that she is unable to maintain employment for health reasons.

The evidence provided on the application does not allow the court to decide the issue of spousal support; the court therefore orders the trial of the issue of spousal support. [ 4 ] The court orders that Ms. Clarke will have the responsibility of bringing the spousal support issue to trial. Ms. Clarke ’ s existing spousal support order will terminate on November 15, 2011 if a trial of the issue of spousal support has not been held by that date. Ms.

Clarke will immediately attend at the Edmonton trial coordinators ’ office and obtain a date for a one day hearing during the month of October, 2011, with testimony from witnesses, of a special chambers application concerning spousal support. She will then serve Mr. Clarke with notice of the date of that hearing. At the hearing, each of the parties will be entitled to call whatever witnesses they choose on the issue of entitlement to spousal support, and the amount of spousal support and the length of the support obligation .

In order to assist the self-represented parties to understand their responsibilities with respect to the trial, including the setting of deadlines for the filing of expert evidence and the establishment of Mr. Clarke’s current income, and to help the parties decide whether the trial should be expanded to deal with what may be the only other outstanding issue in their matrimonial proceedings - the division of matrimonial property - the court orders that these proceedings shall be subject to case management. Ms.

Clarke will therefore immediately write to Associate Chief Justice Rooke for the appointment of a case manager. [ 5 ] Ms. Clarke has been successful in resisting the immediate termination of spousal support on this application. She therefore has the responsibility of drafting the formal order that flows from this decision. Because both parties are unrepresented, the FLIC office in the Edmonton courthouse will help Ms. Clarke prepare the formal order. 1. Background [ 6 ] The parties were married in July 1996 and separated in May 2008. They are the parents of one child; that child currently lives with Ms.

Clarke and Mr. Clarke pays support for that child. There is some evidence suggesting that the child may have special needs. The parties have been unrepresented for several years. The parties are not divorced; there has been no trial of any contested issue between the parties. Mr. Clarke is approximately 43 years old and Ms. Clarke is approximately 41 years old. [ 7 ] The parties have no contract relating to spousal support or matrimonial property. [ 8 ] In February 2009, at a time when each of the parties had a lawyer, this court made an interim spousal support order, on a without prejudice basis, requiring Mr.

Clarke to pay $1,000.00 monthly until further order of the court. The only Notice of Motion I have been able to find in relation to spousal support requests monthly support of $750.00, the same amount that was claimed in the Statement of Claim; that notice, and the Statement of Claim, must have been modified at some time in the past in order to support the order that was eventually made. The order of February 2009 also required Mr. Clarke to pay the expenses connected with the matrimonial home and to make the payments on a Hyundai Tiburon vehicle. Mr.

Clarke asserts that the matrimonial home was in foreclosure at the time the order was made but acknowledges that he did not pay costs associated with the matrimonial home and that the home was indeed the subject of foreclosure. Mr. Clarke states that his bank told him that he had no interest in the Hyundai so he did not make the payments on it; he acknowledges that the vehicle was apparently repossessed from Ms. Clarke. The only property Ms. Clarke has mentioned as being matrimonial property is the truck which Mr.

Clarke currently drives. [ 9 ] Although there is a dispute between the parties concerning the amount of the outstanding arrears of spousal support, Mr. Clarke claiming that he paid Ms. Clarke $7,000.00 cash after the award was made but before it was registered with Maintenance Enforcement, Mr. Clarke is not asking the court to cancel any part of the arrears. His application is limited to an application to cancel ongoing spousal support. [ 10 ] Both parties were unrepresented on this application. [ 11 ] Mr. Clarke is employed in the oil and gas industry.

Based on current employment pay records, his gross yearly income appears to total approximately $120,000.00.

[ 12 ] Ms. Clarke states that her monthly income is comprised solely of a monthly AISH payment of $1,288.00. However, the deposit statement from AISH produced by Ms. Clarke indicates not only that Ms. Clarke receives $1,288.00 direct, but may also indicate that an additional payment of $400.00 per month is made by AISH direct to Ms. Clarke ’ s landlord. Ms. Clarke advises that she is entitled to earn up to $800.00 monthly without losing her AISH payments; however, there is no information from her about whether she is in fact earning additional money. [ 13 ] Mr.

Clarke refers to a letter dated October 19, 2010 from Ms. Clarke ’ s physician, who states that he has been her physician for the last 15 years, i.e. from more or less the time of the marriage. That letter states that Ms. Clarke is currently taking medication for arthritis, migraines, asthma, depression and GERD that “ she is doing well with treatment and her symptoms are stable and well controlled. In my opinion, Ms. Clarke is healthy and fit to care for her son . . . ” That letter does not address employability. Ms.

Clarke asserts that her receipt of AISH payments testifies to her inability to work and that her doctor ’ s letter was only addressing her ability to care for the parties ’ son. [ 14 ] Ms. Clarke also states that she did, in fact, complete some portions of a job-related program during the course of the marriage. In fact, her Statement of Claim indicates that she was a student. [ 15 ] Ms. Clarke receives child support. Based on current income, that amount would be approximately $1,050.00 per month.

A child support payment contributes to the payment for accommodation for the child and to the child ’ s food, clothing, entertainment, etc. In her Statement of Claim for Divorce and Matrimonial Property, Ms. Clarke claimed for support for one child; at some point, the court awarded Ms. Clarke support for two children. Presumably, at some stage the existing child support order will have to be modified to reflect, on the one hand, the fact that, although Mr. Clarke has, in the past, presumably stood in loco parentis to one or possibly two children of Ms.

Clarke ’ s, there may currently be only one child of the marriage, and, on the other, Mr. Clarke ’ s current gross income. The decision the court is making today should not be interpreted as any kind of child support decision: there is no such application before the court from either party. The court merely wished to make it clear that Ms. Clarke will receive some monthly amount from Mr. Clarke for child support and that that amount helps to defray the child ’ s accommodation, food, clothing, and other expenses. [ 16 ] Mr. Clarke asserts that, in addition to financially supporting the child he had with Ms.

Clarke, during the course of the marriage he also supported Ms. Clarke ’ s two children from a previous relationship. [ 17 ] Since 2009, Mr. Clarke has assumed financial responsibility for an adult woman and that woman ’ s children. No explanation has been provided by Mr. Clarke about why that woman is not economically self-sufficient, nor why the father of those children are not supporting them. Nor does he explain why he believes that his wife should be economically self-sufficient whereas the woman he supports has no such obligation. [ 18 ] Because of Ms.

Clarke ’ s admitted financial situation, it is clear that any overpayment on an interim spousal support order could not be repaid by Ms. Clarke. 2. Entitlement to spousal support

a) General principles [ 19 ] Because the parties are self-represented, the court will provide some general background about the framework of spousal support decisions. Parliament intended that spousal support should be paid to a spouse, even after a divorce judgment has been granted, if that spouse suffered some financial disadvantage as a result of the marriage or its breakdown; proof of that disadvantage must be made by the spouse alleging it.

Parliament intended that, after a marriage was over, former spouses should become economically self-sufficient as soon as practicable; by inference, this means that some former spouses will never be financially independent once a marriage is over and that very many spouses will require some time, and perhaps some training, to become economically independent. Parliament recognized that responsibility for child care might negatively affect a spouse ’ s ability to maintain or improve employment.

Courts refer to these parliamentary objectives as compensatory spousal support, i.e. making up to one spouse what was lost by that spouse by reason of the marriage. In addition, Parliament authorized spousal support where the mere breakdown of the marriage caused a hardship for one spouse; this hardship could arise, for example, merely from the loss of a standard of living which that spouse could never expect to achieve on their own. Courts refer to this objective as non-compensatory.

As to the relative importance of the two types of objectives, courts have held that both types must be held in mind when weighing a claim for spousal support:

48 To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge , supra, recognized as lying at the heart of the Divorce Act . It also may well accord, in my belief, with society's sense of what is just.

The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support and illness, states: Financial provision on divorce is not . . . simply a matter of abstract principle.

It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off, say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party might be. Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less . 49 In

summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a "joint endeavour", a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support .

However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role.

Absent negating factors, it is available, in appropriate circumstances, to provide just support. (Emphasis added) [ 20 ] Financial disadvantage could be long or short term: the break-up of a marriage could create something as simple as the need to buy a new kitchen table or could create a problem that is as complex as the need to find a way to become financially self-supporting. Financial disadvantage often arises as a result of child bearing and child care since the obligations of child care sometimes interfere with employment and careers.

Financial disadvantage sometimes arises as a result of an understanding between spouses whereby one spouse assumes financial responsibility for the spousal unit and the other spouse provides only non-monetary services.

b) Applying the general principles to the situation here [ 21 ] Mr. Clarke ’ s position is, essentially, that he would like a “ clean break ” from Ms. Clarke; he thinks he has paid enough spousal support for long enough and he “ just wants to move on ” . Canadian law does not impose a clean break model: on the contrary, as noted above, Parliament chose instead legislation which recognized both the clean break and the fundamental marital obligation theories of divorce. Therefore, in the circumstances here, Mr. Clarke must prove not only that Ms.

Clarke was not disadvantaged by the marriage, but also that the fundamental marital obligation has been adequately satisfied by three years of support payments. The evidence presented by Mr. Clarke on this application is inadequate to meet that burden. Even if Mr. Clarke had proved that Ms. Clarke was not disadvantaged by the marriage, and therefore she did not have to be compensated by him for what she gave up in the marriage, he still has not proved that the fundamental marital obligation has been adequately satisfied. The real problem with Mr.

Clarke ’ s position is that the evidence presented by him, including his own testimony about the circumstances of the marriage, is contested by Ms. Clarke and the court is unable to choose between the positions of the parties. The court must therefore order a trial of the issue of spousal support. [ 22 ] In making a determination of spousal support, on an interim basis or otherwise, and in assessing whether one or both of the models of spousal support should be applied, the court must look at the means and needs of parties and at all of their circumstances.

Typically, the court begins such an assessment by looking at the situation of the parties at the time of the marriage. Here, the parties are not agreed on those circumstances. While it is agreed that, at the time of the marriage, Ms. Clarke had two children from a former relationship, it is not clear whether she was employed. It is therefore not clear whether she gave up any opportunities for employment by marrying Mr. Clarke or whether she actually obtained financial advantage from the marriage.

[ 23 ] It is clear, however, that Ms. Clarke had one child within this marriage. It is not clear from the evidence presented on this motion whether responsibility for the care of this child had an effect on Ms. Clarke ’ s employability and ability to become economically self-sufficient. [ 24 ] There is no evidence about whether Ms. Clarke was employed outside the home during the course of the marriage. Such evidence as has been filed suggests that Mr. Clarke was responsible for all matrimonial expenses during the marriage.

In other words, the limited evidence on this application suggests that, during the marriage, Ms. Clarke was - with Mr. Clarke ’ s approval or acceptance - financially dependent upon Mr. Clarke. If that were in fact the situation, then the Clarke marriage might be described as one in which the fundamental marriage obligation, to support the other spouse, was more important than the compensation principle. Where the fundamental marriage obligation is important, some period of post marriage breakdown adjustment by Ms. Clarke would be expected. [ 25 ] Nor is there any clear evidence about any job training that Ms.

Clarke took during the marriage: Mr. Clarke asserts that Ms. Clarke failed an attempt at obtaining post-secondary job training whereas Ms. Clarke asserts that she was at least partially successful in that endeavour. Oddly, in relation to this factor, Mr. Clarke seems to argue that Ms. Clarke is in fact unfit for employment. [ 26 ] Mr. Clarke asserts that Ms. Clarke has the necessary health to find employment; there is seemingly contradictory evidence on that issue from Ms. Clarke ’ s physician and from Ms. Clarke ’ s receipt of AISH. Ms. Clarke wrongly asserts that Mr.

Clarke is not entitled to pursue the issue of her state of health: when she claims that she is not well enough to be able to obtain and maintain employment, she puts her health into contention and must answer questions and provide records about it. [ 27 ] Mr. Clarke does not present any evidence about the family ’ s standard of living while they were living together; where parties have lived together for a lengthy period of time, one of the financial disadvantages of the breakdown of a marriage may be the loss of a standard of living. We do know, however, that Ms.

Clarke is currently living in a rented trailer; that appears to be a lower standard of living than while the parties were living together. There is a dispute about whether Ms. Clarke currently possesses a vehicle, but it is clear that Ms. Clarke had possession of a vehicle while the parties were living together. The evidence is simply inadequate to determine the issue of whether Ms. Clarke is entitled to spousal support. [ 28 ] Mr. Clarke argues that he has acquired new financial responsibilities including the responsibility for an unemployed adult woman. This is a weak argument since Mr.

Clarke remains married and knows about the without prejudice interim support order: he cannot, while within marriage and therefore within not only a potential claim for spousal support but an actual order for spousal support, voluntarily adopt impediments to compliance with legal responsibilities. Moreover, Mr. Clarke ’ s argument is bizarre argument, since; presumably, a person in Mr. Clarke ’ s position should expect adult healthy women to be employed. 3. Trial of the issue of spousal support ; appointment of a case manager [ 29 ] Ms.

Clarke filed the Statement of Claim for Divorce and Matrimonial Property in which she made a claim for monthly spousal support of $750.00. Ms. Clarke has the obligation to prove that she is entitled to spousal support. Therefore, Ms. Clarke will have the responsibility to bring the issue of ongoing spousal support back to trial for a determination of that issue. [ 30 ] In order to ensure that Ms. Clarke does in fact bring the matter of spousal support to trial relatively promptly, Ms.

Clarke ’ s existing spousal support order will terminate on November 15, 2011 if a trial of the issue of spousal support has not been held by that date. [ 31 ] As a first step, towards arranging that trial, Ms.

Clarke will immediately go to the trial coordinators ’ office in this building and secure one day, during the month of October, 2011, for the trial of the issue of spousal support which will be held by way of a special chambers application with witnesses testifying in person; in other words, on the day in question each party will be entitled to call witnesses and will only be allowed to put evidence to the court through witnesses. Ms. Clarke will then immediately notify Mr.

Clarke of that date so that he also can prepare for trial. [ 32 ] Because each of these parties is self-represented and because there are other issues in dispute that may possibly be able to be resolved during the same special chambers hearing, the court orders that this proceeding shall be case managed. There are some

technical difficulties that will have to be cleared up prior to October. For example, since a party cannot normally receive anything more than what they asked for, if no amendment to the Statement of Claim has yet been made, a date by which any request for amendment should be made will have to be imposed. Dates may also have to be imposed for the exchange of financial information such as tax filings, bank accounts, etc. Also, because Ms. Clarke ’ s health is an issue, the existing Rules concerning the calling of expert witnesses may have to be adjusted in order to have a hearing in a timely way.

Also, it may be possible to add the claim for matrimonial property to the spousal support claim. [ 33 ] Ms. Clarke will therefore immediately write to Associate Chief Justice Rooke advising him of this court ’ s decision that a case manager should be appointed, and asking him to name a case manager. Ms. Clarke will then immediately arrange a meeting for herself and Mr. Clarke with the case manager. 4. Responsibility for preparing the formal order [ 34 ] Ms. Clarke has been successful in resisting the immediate termination of spousal support on this application.

She therefore has the responsibility of drafting the formal order that flows from this decision. Because both parties are unrepresented, the FLIC office in the Edmonton courthouse will help Ms. Clarke prepare the formal order. 5. Costs [ 35 ] Costs of this application will be decided by the court which decides the spousal support issue. Heard on the 16 th day of June, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of June, 2011. J.B. Veit J.C.Q.B.A. Appearances: Mr. Barrie Clarke, on his own behalf

Ms. Colleen Clarke, on her own behalf